RE: MINISTERIAL INQUIRY INTO GREENFIELDS EXPLORATION - BOWLER INQUIRY (2001)
25 June 2001
Mr John Bowler
Ministerial Inquiry - Greenfields Exploration
PO Box 7606
Cloisters Square
PERTH WA 6850
Dear Mr Bowler,
RE: MINISTERIAL INQUIRY INTO GREENFIELDS EXPLORATION - BOWLER INQUIRY
Thank you for the opportunity to make submissions to the Ministerial Inquiry to identify strategies to increase resource exploration in Western Australia - the Bowler Inquiry. Enclosed is a copy of my submission which contains several recommendations.
I acknowledge the importance of resource exploration to the economy and community of Western Australia and encourage the Inquiry, in its recommendations, to adopt a sustainable development approach in promoting the further development of resource exploration in Western Australia.
A sustainable development approach, as it relates to human rights, is founded on the acknowledgement and recognition of human rights principles within development strategies. These strategies are particularly important as they relate to the recognition and exercise of Indigenous rights within Australia, including the recognition and protection of native title rights and interests.
In the interests of transparency and openness, I consider it useful for matters to be widely discussed. Accordingly, I intend to make my submission (together with links to the Terms of Reference of the Inquiry) available on the Commission's website.[1] If you have any queries in relation to this, or any aspects of the submission please do not hesitate to contact Yvette Park. Yvette's direct telephone number is (02) 9284 9785, or you can use e-mail to yvettepark@humanrights.gov.au
Yours sincerely
Dr William Jonas AM
Aboriginal and Torres Strait Islander Social Justice Commissioner.
encl
THE ABORIGINAL AND TORRES STRAIT ISLANDER SOCIAL JUSTICE COMMISSIONER'S SUBMISSION TO THE MINISTERIAL INQUIRY TO IDENTIFY STRATEGIES TO INCREASE RESOURCES' EXPLORATION IN WESTERN AUSTRALIA
2. Human rights principles and sustainable development
2.1 Equality and non-discrimination
2.2 Maintenance of Indigenous culture
2.3 Effective participation
2.4 Sustainable development and MMSD3. Summary of earlier reports and submissions
3.1 Review of the Native Title Claim Process in Western Australia -WAND Report
3.2 Project Development Approvals Review
3.3 Technical Taskforce on Mineral Tenements and Land Title Applications4. Recent developments in the administration of native title and tenement applications
4.1 Agreement options
4.1.1 Queensland Model ILUA
4.1.2 Victorian Native Title Protocol for Exploration
4.1.3 Northern Territory Rio Tinto Agreement
On April 26, 02 the Western Australian Minister for State Development; Tourism and Small Business, Clive Brown announced a ministerial inquiry (Inquiry) to identify strategies to increase resource exploration levels or 'greenfields exploration' in Western Australia.
The inquiry, to be conducted by Mr John Bowler MLA, Member for Eyre will investigate reasons for the downturn in greenfields exploration and make recommendations at a State and Commonwealth level to promote greater exploration in Western Australia. Within the terms of reference, national and international issues were identified, that may have contributed to lower levels of greenfields exploration in Western Australia. Of the national issues, 'land access difficulties related to native title issues…' was identified for analysis and recommendation.
The Aboriginal and Torres Strait Islander Social Justice Commissioner (Commissioner) has statutory functions under the Native Title Act 1993 (NTA) to promote discussion and awareness of human rights in relation to Aboriginal and Torres Strait Islander people, to report to the Commonwealth Government on the enjoyment and exercise of human rights by Indigenous Australians, and to recommend where necessary on action that should be taken to ensure these rights are observed. [2] These submissions are made pursuant to the Commissioner's functions.
In this capacity the Commissioner has made submissions to a number of reviews and inquiries conducted by or on behalf of the Western Australian government, in relation to the administration of native title and development. We anticipate that in examining issues relating to 'land access difficulties' and native title that the Inquiry will take account of these reviews in developing its recommendations. Hence, we summarise our submissions to these reviews, provide examples of alternative strategies adopted in other states and make recommendations based on principles of human rights and sustainable development.
2. Human rights principles and sustainable development
The administration of the Western Australian government is required under domestic and international law to operate in a manner that is consistent with human rights principles . [3] The following human rights principles are directly relevant to the administration of native title and mineral tenements and should underpin any recommendations made in relation to the administration of native title rights and interests.
2.1 The right to equality before the law - including equal protection of property interests before the law.
This is required by the International Convention against the Elimination of Racial Discrimination (ICERD), article 5 and the Universal Declaration of Human Rights (UDHR), article 17. This guarantees the right of Indigenous people to the equal protection of their property rights before the law, without distinction as to race, colour or ethnic origin. Importantly, the meaning of equality under international law is not limited to equal treatment before the law. To ensure the protection of minority groups or Indigenous people, mechanisms for protection may require differential treatment under the law, to ensure equal outcomes and to take account of cultural specificity - this differential treatment is the principle of substantive equality.
In practice, the principle of equality in the administration of native title rights requires that Indigenous and non-Indigenous interests are administered equitably without non-Indigenous interests being privileged over the rights of Indigenous groups. [4] Recent sustainability commitments by the Western Australian government discussed below, contemplate such an outcome - where sustainable development can occur 'without trade-offs or compromise.' [5]
2.2 The right to enjoy and maintain a distinct culture is required by the International Convention on Civil and Political Rights (ICCPR), article 27.
This right ensures the protection of the distinct characteristics of a minority group and the protection of the circumstances required to maintain and develop the culture of the group. Where land is of central significance to the culture of a group, then the right to enjoy and maintain a distinct culture includes the protection of Indigenous rights and interests in land.
Respect and protection of minority or Indigenous culture also contemplates the exercise of culture and rights in a contemporary context and does not restrict the circumstances of minority or Indigenous culture to an anachronistic, 'frozen in time' interpretation. Rather, respect for Indigenous culture includes a right to social, cultural and economic development. In its General Recommendation on Indigenous People, the CERD Committee recommended that States, "provide Indigenous people with conditions allowing for a sustainable economic and social development compatible with their cultural characteristics." [6]
This right requires that Indigenous groups are able to maintain and protect the unique characteristics of their culture, thereby requiring adequate protection of Indigenous spiritual and cultural interests in land. Based on the General Recommendations summarised above, this right also requires that States allow for the social and economic development of Indigenous groups . [7] The administrative process of mineral tenement applications provides the States with the opportunity to promote this important human right principle, by allowing Indigenous organisations the flexibility to advance the social and economic interests of Indigenous groups by promoting human rights and sustainability principles and through the full use of provisions under the NTA.
2.3 The right of Indigenous people to self-determination and effective participation in decisions affecting them, their lands and territories.
This is required under Article 1 of the International Convention on Civil and Political Rights (ICCPR) and Article 1 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The enjoyment of culture requires the provision of 'measures to ensure the effective participation of minority communities in decisions which affect them'. The Human Rights Committee and the Committee on the Elimination of Racial Discrimination have called on States to ensure the effective participation of Indigenous groups in public life and in decisions directly relating to their rights and interests. [8] This principle of effective participation requires that Indigenous groups are able to participate in decision making from a position of prior informed consent.
Increasingly, these core human rights principles are supported and espoused by sustainable development initiatives. A recent project, 'Facing the Future, The Report of the MMSD Project' conducted by the Australian Minerals and Energy Environment Foundation, in accordance with the Global Mining Initiative [9] provides important guidance for the development of sustainable development and the application of human rights principles within Australia's mining industry.
The study defined the key elements of sustainable development which extend beyond the sustainable use of natural resources and include responsibility for maintaining and enhancing the health and wellbeing of individuals and social structures that are affected by project development. [10]
Key issues addressed in the study that may have relevance to the Inquiry's analysis and recommendations for native title administration include:
- Respect for Indigenous peoples - promoting the legal and social recognition of Indigenous peoples rights and interests. Promoting the development of long term relationships between stakeholders from the earliest stage of exploration.
- Stakeholder engagement - promoting rights and wellbeing of Indigenous communities by ensuring that operations receive the prior informed consent of local indigenous communities. The prior informed consent of native title holders in the grant of exploration licence applications will provide a strong basis for future negotiation that may arise from successful exploration of an area.
- Adoption of a rights based approach which is founded on the standards established by a wide range of codes, conventions, declarations and legislation and clearly establishes the rights of a stakeholder group, particularly Indigenous stakeholders, whose rights and interests in the land surpass those of 'just another stakeholder group'.
Recommendations made by the study apply fundamental human rights principles of the right to equality before the law, the right to enjoy and maintain a distinct culture and the principle of effective participation, through the recommendations of prior informed consent.
Hence, the study provides an analysis of the way in which the mining industry in Australia can effectively make the transition to sustainable development, particularly by building effective working relationships between stakeholders and adopting strategies that respect the rights and interests of Indigenous peoples. As such it provides an excellent background to international approaches to sustainable development and useful recommendations for the Australian mining industry.
In December 2001 the Western Australian government launched the State Sustainability Strategy, Focus on the future: Opportunities for Sustainability in Western Australia. Central to the sustainability strategy is the need 'to find new approaches to development that contribute to our environment and society without degrading them over the longer term'. Importantly, the government recognised that such an outcome can be achieved 'simultaneously without trade-offs or compromise'. [11]
As part of the State Sustainability strategy, an analysis of Indigenous sustainability issues was prepared in a paper by Steven Kinnane, entitled 'Beyond the Boundaries - Exploring Indigenous Sustainability Issues within a Regional Focus, through the State Sustainability Strategy'. The report identified a number of key principles that are consistent with a human rights approach and may assist the Inquiry in making recommendations that provide a sustainable approach to the process of native title and mineral tenement applications. The report identified the recognition of native title rights and interests as a necessary part of any consideration of sustainability [12]; emphasised the importance of Indigenous participation in all aspects of decisions making and offered principles for an Indigenous sustainability strategy.
It is fundamental to the Inquiry, in developing recommendations for the administration of native title and mineral tenements within an overall strategy of sustainability, that it give consideration to the human rights principles outlined above. Recently the Commissioner has made submissions to a number of Western Australian government reviews relating to native title, highlighting human rights principles relevant to issues raised by the reviews.
3. Summary of earlier reports and submissions
To date, the Western Australian government has commissioned a number of reports addressing the administration of native title rights and interests, including:
- Review of the Native Title Claim Process in Western Australia.
- Technical Taskforce on Mineral Tenements and Land Title Applications and;
- Project Development Approvals Review;
It is anticipated that the Inquiry will give due consideration to these reports, hence I briefly reiterate my submissions to each of these reports.
3.1 Review of the Native Title Claim Process in Western Australia
In April 01, the Deputy Premier of Western Australia announced a review of the Government's native title negotiating principles, expressing a desire to move away from litigation to pursue negotiated native title outcomes. The purpose of the Review was to develop and assess a set of principles to guide the Western Australian government in negotiating native title determinations and agreements. The Review provides a broad analysis of the native title recognition process, recommending greater emphasis on negotiated native title outcomes. While not dealing directly with the processing of mineral tenements and land titles, the report provides a valuable analysis of the recognition process and would assist in informing the Inquiry of this important aspect of native title administration.
The Commissioner has made submissions on the 'General Guidelines - Native Title Determinations and Agreements' proposed by the Review, advising that the 'process approach' promoted by the Review takes place under the provisions of the Native Title Act 1993 which fails to meet minimum human rights standards . The Commissioner made recommendations that the Review seek to incorporate principles [14] within the Guidelines to ensure the process established by the Guidelines met minimum human rights standards that the NTA fails to achieve.
3.2 Technical Taskforce on Mineral Tenements and Land Title Applications
In April 01, the Western Australian government announced the formation of a Technical Taskforce, to assess how mineral and land title applications could be dealt with more efficiently while at the same time recognising and protecting the native title rights of Indigenous people. [15] In September 01 and January 02 the Commission made submissions to the Taskforce commending the work undertaken by the Taskforce and the broad representation and participation of Indigenous stakeholder groups. However, the Commission maintains concern regarding Taskforce recommendations relating to the processing of exploration and prospecting licence applications.
In its assessment, the Taskforce has made recommendations to continue to submit exploration and prospecting licence applications to the expedited procedures process. Despite the inclusion of heritage survey agreement conditions, such a recommendation disregards the right to negotiate provisions conferred under the Native Title Act 1993 and is inconsistent with human rights standards . [16]
While this approach offers an expedient process of administering native title, it reduces the already inadequate procedural rights [17] available to Indigenous groups under the NTA. Such an approach does not support human rights and sustainability principles and I encourage the Western Australian government to develop a more equitable process for the administration of mineral tenements and native title.
We also note, the Taskforce revealed:
There are major difficulties in attempting to quantify the impact native title has had on the State's mining industry beyond delaying the grant of titles… because far more prominent issues… have contributed to the fall in exploration expenditure, not only in Western Australia but worldwide. [18]
The Commissioner understands that the Western Australian government is yet to formally respond to the recommendations. There has been action in relation to a few recommendation but this does not appear to have occurred in a co-ordinated manner. For example:
- a pilot heritage scheme (per recommendation 3.5(2)) involving relevant Indigenous parties and mining groups, was completed in the goldfields region;
- a working group, comprising NTRB's, mineral bodies and mining companies, has considered legislative changes to WA's mining laws (per recommendation 3.2(5)); and
- the government is considering funding future acts officers (per recommendation 3.6(1)) and establishing a Heritage Protection Working Group (per recommendation 3.5(1))
The recommendations that have progressed are those of most benefit to industry. It appears no recommendations of direct benefit to Indigenous interests have been implemented, such as; compulsory heritage agreements (3.2(4)) use of non-extinguishment principle (3.4(2-4)), conditions in title for enforcing heritage agreements (3.4(7)) and compensation (3.4(8)). The lack of a formal and comprehensive Government response to the Technical Taskforce report leaves various parties uncertain as to how matters should proceed.
3.3 Project Development Approvals Review
In September 01, the Western Australian government established a review of the Project Development Approvals System (Review). The Commissioner provided submissions on the 'Interim Report for Comment' in January 02. Central to our submission was the apparent lack of Indigenous involvement in the Review and the subsequent emphasis on development above human rights principles and the protection of Indigenous rights and interests.
The initial review was conducted without the effective participation of Indigenous groups. This lack of inclusion is not only contrary to fundamental human rights principles but undermines the objectives of the review in that, by failing to obtain the views of a significant stakeholder group, particularly in relation to the operation of the Aboriginal Heritage Act 1972 and the Native Title Act 1993 the Review will inevitably fail to achieve a system of decision-making which is co-ordinated and integrated, clear and unambiguous.
The Final Report of the Review supports the negotiated outcome approach and makes recommendations for the use of a broad range of agreement mechanisms, such as protocols, regional heritage agreements, memoranda of understanding and indigenous land use agreements. [19] However, the broad tenet of the Review promotes development interests above those of native title rights and interests, [20] this is contrary to principles of human rights and sustainability.
The Commissioner recommends the Inquiry give full consideration to his submissions when examining the recommendations made by the reviews summarised above, to ensure recommendations by the Inquiry, arising from these reviews meet minimum human rights standards in relation to native title rights and interests.
The Commissioner also refers the Inquiry to a recent report conducted by the Auditor General for Western Australia, entitled Level Pegging: Managing Mineral Titles in Western Australia [21]. The report examines the administrative processes of the Western Australian Department of Mineral and Petroleum Resources and makes recommendations to improve administrative processes within the Department. The Auditor General indicated that delay in processing titles applications is not simply caused by native title, and that processing by the Department of Mineral and Petroleum Resources required attention:
Irrespective of the impact of native title, the mineral titles application process can take as long as 22 months. Significant delays occur in the initial recommendation to grant by the Mining Registrar and by applicants failing to respond to requests for information. Of the 1 798 applications lodged in the first six months of 2000, 50 per cent still had to be referred under the Native Title Act 1993 (Cth) at the time of this audit examination . [22]
The Inquiry should carefully consider the Auditor General's report in conducting its investigations and coming to conclusions.
Any recommendations by the Inquiry in relation to the administrative process of exploration tenement applications would be lacking without careful consideration of this review.
4. Recent developments in the administration of native title and tenement applications
The backlog of exploration and mineral tenement applications in Western Australia is not uncommon. Tenement backlogs have also occurred in Queensland and the Northern Territory. Many states and territories have developed strategies to address this problem and examples of these are summarised below.
Agreements negotiated with the effective participation of Indigenous people offer a way in which an efficient and flexible system of administration may operate to the benefit of all stakeholders. In Queensland, Victoria and the Northern Territory agreements have been negotiated between governments, mining companies and Indigenous stakeholder groups to effectively administer the backlog of exploration and mining tenement applications in each respective state or territory.
In Queensland and Victoria, peak Indigenous bodies and state governments have successfully negotiated standard agreements for the grant or renewal of exploration licence applications or mineral tenements. These standard agreements function as an alternative to pursuing provisions under the NTA, ensuring that native title rights and interests are not further eroded by the use of a prescriptive process of administration. Such an approach also allows the flexibility for the negotiation of a more comprehensive agreement similar to that achieved in the Northern Territory between the Northern Land Council and Rio Tinto. Each of these types of agreements are briefly summarised below.
During 2000 the Queensland government and the Queensland Indigenous Working Group (QIWG), successfully negotiated a Model ILUA to assist in the effective processing of the exploration backlog in Queensland. The Model ILUA acts as an alternative to the right to negotiate provisions under the NTA, allowing companies and native title parties to either adopt the model or conduct their own negotiations and agreement under the right to negotiate provisions of the NTA.
The effective participation of the peak body of Indigenous land councils during the development of the Model ILUA ensured human rights standards were satisfied and that the outcome addressed the concerns of both the Government and Indigenous interests - leading to a more workable result. Hence, we recommend the Inquiry seek the active participation of peak Indigenous groups in the development of its recommendations.
4.1.2 Victorian Native Title Protocol for Exploration
Similarly, in Victoria the Mirimbiak National Aboriginal Corporation, the Native Title Unit of the Victorian Department of Justice and the Victorian Minerals & Energy Council recently concluded negotiations of Pro forma agreements for the granting of Exploration and Mining Deeds. The purpose of the negotiated Deed is to provide a guide to facilitate the grant or renewal of exploration licences and mining licences issued under the Mineral Resources Development Act 1990 that are subject to the right to negotiate provisions of the Native Title Act 1993.
These Pro forma deeds offer another example of negotiated agreements that have proceeded with the effective participation of Indigenous groups and have successfully negotiated outcomes that allow for the expeditious administration of native title and mineral tenements without undermining rights conferred under the NTA.
4.1.3 Northern Territory - Rio Tinto template agreement
In the Northern Territory, the Northern Land Council has successfully negotiated a template agreement with Rio Tinto and more recently a Memorandum of Understanding with De Beers . [23] The Rio Tinto Agreement is over 47 existing applications and all future Rio Tinto applications. The agreement addresses site protection, community benefits including employment and training opportunities and contains environmental protection mechanisms. [24]
Such large scale agreements must take into account broader issues of compensation, training and employment etc that may not be accommodated within the limitations of the expedited procedures process recommended by the Technical Taskforce in Western Australia. Such agreements can function to the benefit of both native title holders and mining proponents and also lead to an effective negotiating relationship that will be helpful if exploration proceeds to the next stage of mineral extraction.
The template agreements developed in Queensland and Victoria, demonstrate the way in which the effective participation of Indigenous stakeholders can lead to a more workable and efficient system. However, the flexibility of these administrative systems in allowing stakeholders the option to adopt the administrative process that is most appropriate for their needs allows for the negotiation of the type of agreement achieved in the Northern Territory.
The success of the Rio Tinto agreement in the Northern Territory demonstrates the way in which a flexible system may be shaped to benefit all parties. The Commissioner therefore recommends the adoption of a flexible solution that can both offer parties a simple solution but also allow for the negotiation of more complex, sophisticated agreements that can address tenement grants in a more comprehensive manner as has been demonstrated in the Northern Territory.
The Commissioner pursuant to statutory functions under the Native Title Act 1993, makes the following recommendations to the Inquiry:
- Recommendations made by the Inquiry are developed with the effective and active participation of Indigenous stakeholder groups.
- Recommendations by the Inquiry ensure the equal protection of Indigenous rights and interests by maintaining the operation of all procedural rights under the NTA in any recommendations affecting the administrative process of native title and mineral tenements.
- The Inquiry conduct its analysis and make recommendations in consideration of human rights principles and the increasing emphasis on sustainable development approaches.
- The Inquiry make recommendations that allow for a flexible system which can accommodate stakeholder interests more effectively than a prescriptive system that may prevent the negotiation of more comprehensive regional agreements.
1. https://humanrights.gov.au/our-work/aboriginal-and-torres-strait-islander-social-justice
2. s46C, Human Rights and Equal Opportunity Commission Act 1986 (Commonwealth) and s209, Native Title Act 1993 (Commonwealth) ('NTA').
3. 'A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty'. Art. 27 of Vienna Convention on the Law of Treaties Vienna, 23 May 1969, AUSTRALIAN TREATY SERIES 1974 No 2.
4. Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2001, HREOC, Sydney.
5. Government of Western Australia, 'Focus on the Future: Opportunities for Sustainability in Western Australia - a consultation paper for the State Sustainability Strategy for Western Australia, December 2001
6. Committee on the Elimination of Racial Discrimination, General Recommendation XXXIII (51) concerning Indigenous Peoples, CERD/C/51/Misc.13/Rev.4 (1997), para 5.
7. Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2001, HREOC, Sydney
8. General Recommendation XXIII (51) concerning Indigenous Peoples (para.4) adopted on 18 August 1997, CERD/C/51/Misc.13/Rev.4
9. The Global Mining Initiative was established in 1999 in association with the World Business Council for Sustainable Development, against a background of considerable public concern about the mining industry's social and environmental performance. The purpose of the Initiative was to; review the international minerals sector, conduct an independent study of the broad community issues confronting the industry and, to inform debate at the Rio + 10 Conference and a major industry conference in Toronto in 2002.
10. Australian Minerals and Energy Environment Foundation, Facing the Future - The Report of the MMSD Australia Project, 2002
11. Government of Western Australia, 'Focus on the Future: Opportunities for Sustainability in Western Australia - a consultation paper for the State Sustainability Strategy for Western Australia, December 2001
12. Finnane, S., 'Beyond the Boundaries, Exploring Indigenous Sustainability Issues Within a Regional Focus - through the State Sustainability Strategy', prepared for the Sustainability Policy Unit, Department of Premier and Cabinet. April 2002
13. Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Reports - 1998, 1999, 2000, AGPS, Canberra
14. Aboriginal and Torres Strait Islander Social Justice Commissioner, 'Comments on draft "General Guidelines - Native Title Determinations and Agreements"', 14 August 02.
15. Government of Western Australia, Technical Taskforce on Mineral Tenements and Land Title Applications, pg. 9, November 2001
16. Aboriginal Torres Strait Island Social Justice Commissioner, 'Comments on The Taskforce Report Recommendations', 10 Sept 01 and 'Comments on Final Report of Technical Taskforce (November 2001), 29 January 02. Appendix A
17. Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report, 1998 - 2001, HREOC, Sydney.
18. Government of Western Australia, Technical Taskforce on Mineral Tenements and Land Title Applications, Discussion Paper, pg 12, August 2001.
19. Government of Western Australia, Review of the Project Development Approvals System, prepared by the Independent Review Committee, April 2002 - Recommendation 13.
20. Aboriginal and Torres Strait Islander Social Justice Commissioner, 'Submissions of the Aboriginal and Torres Strait Islander Commissioner,
21. Report 1, June 2002, available at www.audit.wa.gov.au/reports/report2002_01/pfreport2002_01.html accessed 25 June 2002.
22. Ibid, 'Executive Summary', heading 'Timeliness and Cost'.
23. The MoU with De Beers builds on the agreement made with Rio Tinto and establishes a procedure for dealing with ELAs on 57 of the company's tenement applications. Northern Land Council, 'MoU's smooth explorers' path in Top End' - Media Release, 5 June 02.
24. Northern Land Council, 'Breakthrough in NT's backlog of exploration applications' - Media Release, February 6, 02.
Last updated 2 September 2002.
